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Chris Berg hates the term “a national conversation”, but the policy director at think tank the Institute of Public Affairs believes the debate around freedom of speech has evolved into just that.

“It’s clear that a lot of people are passionate about freedom of speech and it’s also clear that the constitutional constraints stopping the government impeding on our freedom of speech are quite inadequate,” says Berg. “That’s widely accepted on both sides of the political spectrum as well as both sides of the section 18C debate.”

From bikie laws in Queensland to the Bolt case in Victoria and Prime Minister Tony Abbott’s backflip on repealing section 18C of the Racial Discrimination Act, the so-called “freedoms debate” is now a regular feature in the mainstream media. It mightn’t be a barbecue stopper but your right or otherwise to be a bigot will certainly pique conversation as you turn the snags. When Berg openly canvassed the option of a bill of rights at the Free Speech 2014 Symposium in Sydney in August, even if he defined that bill narrowly, many thought this marked a small but significant shift in the debate.

The president of the Australian Human Rights Commission, Gillian Triggs, said in her opening remarks at the same conference that the “freedoms debate” had exposed the weaknesses in Australia’s approach to human rights.

Australia is the only common law country without an explicit set of rights set out in legislation or the constitution. And aside from an implied freedom of speech recognised in Lange v Australian Broadcasting Corporation, the individual rights of Australians lack a definitive, national point of departure.

It is now arguable that the debate is being driven by both sides of politics. “All sorts of people who care about fundamental freedoms are starting to ask, ‘Why is something like a bill of rights not being implemented?’,” says Triggs in a separate interview with the LSJ.

Constitutional lawyer and public commentator George Williams, who chaired the process that led to the Victorian Charter of Human Rights and Responsibilities, agrees. “What we’re seeing in the new debate is people coming together from the left, right and centre all recognising that we have a larger systemic problem in Australia and recognising that there are rights that should be better protected, irrespective of your ideological alignment,” he says.

Just under five years ago, Jesuit priest and law professor Father Frank Brennan handed down his report into the protection of human rights in Australia. The Brennan Report was the result of a committee set up by the then Federal Labor Government to honour an election pledge. After thousands of submissions, hundreds of round tables and independent polling, the committee recommended, among other things, that “Australia adopt a Federal Human Rights Act”.

But roiling internal Labor Party politics quashed any notion of a charter being established. According to a close observer at the time, the “cabinet was split with some senior members of the party exerting a lot of influence [against the recommendation]. By and large those that had some legal training were more sympathetic to a bill of rights”.

The Opposition has always opposed the bill of rights as a dangerous and foolish idea, which would have diminished the authority of Parliament and politicised the judiciary.

then Shadow Attorney-General, April 2010

Any notion of an Australian Bill of Rights being enacted at that time was resolutely scrapped. Then Shadow Attorney-General George Brandis said: “The Opposition has always opposed the bill of rights as a dangerous and foolish idea, which would have diminished the authority of Parliament and politicised the judiciary … [and] would have been a Trojan horse to impose a left-wing social agenda on Australians without democratic legitimacy”.

The Attorney-General of the day, Robert McClelland, instead set up the Parliamentary Joint Committee on Human Rights in 2010 with the support of the then opposition, which scrutinises the human rights compatibility statements provided by the executive to bills before the Parliament. It then reports, in a non-binding, iterative process, on their compatibility with Australia’s international human rights obligations..

The current chair of the committee is Dean Smith, a Liberal senator from Western Australia.

“If limitations on human rights obligations are not justified, the committee will write back to the Executive Government seeking additional information to justify the limitation. The response is again reviewed by the committee, often meeting the requirements of the committee. Sometimes, they don’t have any more information and we will then conclude our deliberation. Especially with contentious issues like immigration matters, we may conclude the justification for limiting a particular human right cannot be justified. The committee’s report is presented to parliament, published and regularly cited in subsequent debates.”

So, with bipartisan support for the current parliamentary process and seemingly little chance of a charter or bill of rights succeeding, is there even a need to reopen the argument over a bill of rights? One of the main reasons to keep stoking the debate, some believe, is the growing legislative coverage of the field.

Triggs believes there has been an increasing use of executive discretion by the Commonwealth to produce legislation that is not reviewable by the courts.

“Two decades ago you could say that common law was enormously strong and developing jurisprudence was very powerful,” she says. “But now the courts are scrabbling for the most obscure principal of statutory interoperation to protect common law principles. I think that if we had a charter it would enable the court to at least play a role in stating what the core fundamental freedoms are.”

A charter would also allow the development of a more Australian approach to common law freedoms. “Australians do not like the idea of going off to the Human Rights Committee for an international law ruling,” says Triggs. “It would be far healthier to develop our own jurisprudence on these issues.”

Berg admits that many of his conservative colleagues wouldn’t favour handing the judiciary more power. Many of the opponents of a bill of rights, he says, argue that it would lead to an activist or politicised cadre of judges. But he believes the judiciary is an important bulwark of liberty.

“I have no interest in parliament having absolute power,” he says.

Senator Smith, however, believes that “Australians trust the sovereignty of parliament and expect their parliamentary representatives to exercise their judgment”.

“Every three years the electorate can pass a judgment on whether parliamentarians are exercising that authority wisely,” he says. “The electorate cannot cast that same judgment with similar effect over courts and judges. I would argue that it is deeply ingrained in the Australian psyche to trust parliament first and to resist giving courts and judges additional influence. I do not forsee, in my parliamentary career, a bill of rights being enacted.

“I am a constitutionalist and a firm believer in parliamentary sovereignty. This is the genesis for my scepticism on the need for a bill of rights.

“I do not think it is a good use of the Human Rights Commission’s time nor taxpayers’ money to be touting for work and talking up the need for a bill of rights. This matter is closed in the minds of a great many Australians and there is no appetite for a renewed debate.”

There is, however, growing concern at the amount of legislation that infringes on basic freedoms or appears to set up serious policy inconsistencies. There are Queensland bikies laws that impinge on freedom of association, the Federal Migration Act that allows mandatory detention while the government calls for due process in the Peter Greste case in Egypt, and the anti-protest bill in Tasmania that calls for mandatory jail terms for second offences where a protestor disrupts a business. The recently announced federal anti-terrorism laws also have raised questions, especially in relation to data capture and storage, and ASIO’s powers.

Beyond those headline policies, the Law Reform Commission is now researching how traditional freedoms are quietly undermined by a raft of legislation that never reaches the public consciousness. When the Federal Attorney-General receives the report later this year, the issue of individual rights will again be front and centre.

We need to reopen the debate about some form of legislated human rights charter to ensure that neglected freedoms are better protected.

Human Rights Commissioner

It’s those small, unintended consequences that proponents believe a bill of rights would help overcome. The Victorian Charter of Human Rights and Responsibilities enacted in 2006, for example, has been used to help the hearing impaired, the mobility disadvantaged and the elderly. Stephen Keim, a former president of Australian Lawyers for Human Rights, says the strength of a bill of rights is that it applies to everything.

“We don’t know what injustices legislation and administrative action will achieve –parliament and public servants can’t see everything. It’s when an injustice is tested in the crucible of the courts that you can say it’s unjust when applied in that way. Individual litigation brings into focus the injustice of a particular piece of legislation: that is the power of a bill of rights.”

While Keim believes it is legitimate to debate how much power is vested in the judiciary, he believes that “no judge wants to be a legislator or seeks to be a legislator, and if you read all the High Court judgments since 1901, what you find is great restraint on the part of the judiciary,” he says. “Knowing judges, as I do, getting them interested in policy rather than just saying, ‘That’s the law’, is difficult. If you look at the judgments on the Victorian Charter, they are very legalistic and restrained.”

The Victorian Charter follows the “dialogue” model where the rights under the Act are not binding on Parliament. Instead of giving courts the final say, the Act enables them to interpret the law and then go back to parliament with a declaration that the parliament look at the law again. The model is also used in the ACT, Britain and New Zealand. The alternate model, where rights are entrenched in the constitution and courts have the power to strike inconsistent laws down, exists in the United States and Canada.

For Williams, the former model has a clear advantage in that “courts should have a role but that the most important social policy and decision making will ultimately be made in parliament”. Others disagree. Berg, for example, believes that a non-binding bill of rights is a waste of time. Triggs also believes that if a bill of rights was to be introduced into Australia, it would need to be a process with real teeth. “It’s not enough to acknowledge that the legislation doesn’t meet the human rights standards,” she says. “We need to say that if it doesn’t meet the standards then it must go back for redrafting, it needs to have consequences. But it would place the primary responsibility with parliament, which is where it ought to be in a democratic system.”

What rights are deemed fundamental is, after the debate over the merits of a bill at all, perhaps the most polarising part of the debate. For some, like Berg, headline rights such a freedom of speech, freedom of association and freedom of religion are the only rights that should ever be legislated. “This debate has to be grasped out of the hands of the human rights lobby, which has a strategy of relying on international treaties that have no philosophical or legal power in Australia,” he says. “For me, rights that are immediately excluded are those in the social and economic conventions, because you’re trying to replace public policy with the law.”

Smith, while not an advocate of a bill of rights, is nevertheless keen to see certain rights strengthened. “I would like to see greater emphasis given to the right to free speech as proposed in the changes proposed to section 18C. Similarly, I would like to see much greater attention given to promoting private property rights and less of a debate about social and cultural rights.” Others lean towards rights as set out in the Universal Declaration of Human Rights (UDHR) and other international instruments.

“I think the starting point would be the UDHR and the covenants that have been drafted under it,” says Nathan Kennedy, president of Australian Lawyers for Human Rights. “South Africa has civil and political rights and economic, social and cultural rights in its constitution and it works there. But here it would most likely end up with more civil and political rights like in the US or France.”

Australia’s status as the only democracy in the world without a human rights act or bill also offers a possible advantage.

I would argue that it is deeply ingrained in the Australian psyche to trust parliament first and to resist giving courts and judges additional influence.

Liberal Senator

It allows drafters to look at how certain rights have been applied in other nations – rights that often exhibit a high degree of consistency including the right to freedom of speech, of association and freedom from torture.

“The starting point is often international treaties but then you would look carefully at how it’s been adopted in like countries and then in places like Victoria,” says Williams. “That gives you a high degree of confidence about how the courts will approach it.”
The Joint Committee has also been slowly building its own body of work on human rights through its work scrutinising bills against our international human rights obligations. Indeed, a senior observer to the Brennan Report process explains that they felt the next logical step was that after a few years of developing parliamentary compatibility statements, the committee could distil the seven key international instruments into one Australian statement of rights.

Still realpolitik remains one of the major sticking points in implementing a bill of rights. “Perhaps the first step is to enact something that is very narrow,” says Williams. “Freedom of speech, of association, those sorts of rights. And if that was done it would be a strong first step. If you look at the old bikie laws they turn on the very narrow rights of speech and association.
“But one of the very tricky things to overcome is the fact that many Australians think we already have a bill of rights. When I was doing the community consultation in Victoria, people would often say, ‘I already have a right to free speech, I can take the fifth!’ I think we watch too many American cop shows.”

Triggs also thinks leaders of the courts have a responsibility to speak out more.

“The chief justices know better than anyone how rights are being eroded, but they feel constrained to speak out,” she says. “I think the chief justices of the major courts have a responsibility to bring all of their legal wisdom on this matter and to speak out in a non-political way to explain what’s actually going on. Jim Spigelman has been a leader in this area. As a chief justice he was courageous and an intellectual leader and put the argument in a uniquely Australian way. And while I didn’t agree with everything he said, it was very helpful.”

Triggs concedes that the political environment isn’t conducive to immediate change and there’s still no firm national sense that governments have overstepped the mark on individual rights. But she is pleased that the issue is being discussed more and more openly. “I think that if we had a charter it would enable the courts to at least play a role in stating what our core fundamental freedoms are. A lot of people object to international law as such, they’d prefer that our own courts develop our common law. So instead of people like me quoting the UN Human Rights Council or other international bodies we could say, the Victorian Supreme Court or the High Court says, ‘This is what freedom of speech is’ based on our own legislation. I think Australians would much prefer that.” The other major impediment to a bill of rights is the lack of a champion of the cause, such as the former attorney-general Robert Hulls was to Victoria’s bid for a charter. “Law reform is difficult, problematic, often technical and not a vote winner,” says Williams, “so you need someone with a deep legal background, and with a desire and the political will to do it.” And, says Williams, even if there’s no change on the horizon, it’s still important to have the debate before the political scene changes. “What you need to do is talk about these things so that when change does occur, you have a clear idea of what you want to happen.”